How is an “Overnight” Defined When Determining Child Support?
Mar 29, 2019 | Written by: | Share
If you are divorced (or going through the process) and/or you have children in common, you have likely been confronted with the question, “how many overnights will I have with our children?” This is one of the first questions that often needs to be answered in order to calculate child support.
The Child Support Guidelines were developed to provide the court with economic information to assist in the establishment and modification of fair and adequate child support awards. The premise of these guidelines is that (1) child support is a continuous duty of both parents, (2) children are entitled to share in the current income of both parents, and (3) children should not be the economic victims of divorce or out-of-wedlock birth[1].
In accordance with Rule 5:6A, these guidelines must be used as a rebuttable presumption to establish and modify all child support orders. The guidelines must be applied in all actions, contested and uncontested, in which child support is being determined. A rebuttable presumption means that an award based on the guidelines is assumed to be the correct amount of child support unless a party proves to the court that circumstances exist that make a guidelines-based award inappropriate in a specific case.
In a recent unpublished appellate division opinion[2], the plaintiff and defendant shared custody of their son. On November 28, 2017, they negotiated a parenting schedule and child support, which was memorialized in an order.
Subsequently, the plaintiff moved to re-calculate child support due to 1) changed financial circumstances; 2) the omission of work-related childcare on the Child Support Guidelines (Guidelines) worksheet; 3) an inaccurate overnight calculation because of the agreed changes to the schedule; and 4) the need to address controlled expenses incurred as a result of equally shared parenting time.
The parties appeared before a hearing officer who denied the plaintiff's request to recalculate overnights but agreed that both parties' incomes had changed. The hearing officer ran the Guidelines using the previously agreed-upon 209 overnights for the defendant and 156 overnights for the plaintiff and recommended a new support amount of $122 per week.
The plaintiff appealed to the Family Part judge because he believed the hearing officer's overnight calculation failed to account for those days in which he had the parties' son for over twelve hours and instead only considered where the child slept at night.
The plaintiff argued that "overnight" should have been interpreted to mean the majority of the twenty-four-hour day, as defined by Appendix IX-A to Rule 5:6A, not where the child sleeps at night.
The judge rejected this argument and defined "overnight" as where the child sleeps. An appeal followed.
On appeal, the plaintiff argued that it was error for the judge not to follow the Guidelines for computing parenting time to determine overnight shares. If overnight is defined as a majority of twenty-four hours, the plaintiff contended there is no true PPR (parent of primary residence) and his controlled expenses obligation should be recalculated.
The appellate court noted that the Guidelines state, "[o]vernight means the majority of a [twenty-four]-hour day (i.e., more than [twelve] hours)." Pressler & Verniero, Appendix IX-A to R. 5:6A. The Guidelines make no mention of where the child physically sleeps. Therefore, the appellate court determined that the family court's decision to ignore the meaning of the term "overnight," precisely defined in the Guidelines as more than twelve hours in a twenty-four-hour day, was an abuse of discretion.
Child support in New Jersey is formulaic but that does not necessarily equate to an agreement as to the data that is used to perform the calculation. The Guidelines can be complex and nuanced. There may be advocacy in how child support is derived. It is important to consult with counsel to ensure the support is being properly calculated as is necessary to achieve the child’s best interests.
[1] https://www.njcourts.gov/attorneys/assets/rules/app9a.pdf
[2] https://www.njcourts.gov/attorneys/assets/opinions/appellate/unpublished/a4576-17.pdf?c=CNr
Diana Fredericks, Esq., is a partner with Gebhardt & Kiefer, PC and devotes her practice solely to family law matters. She is a Certified Matrimonial Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters in 2015, 2016, 2017, and 2018, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.
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